Is the Government Reading Your E-Mail?

Should the contents of your e-mail messages be protected from unwarranted law enforcement scrutiny to the same extent as your physical letters sent through the mail?

To ask the question makes the answer seem obvious. E-mail is today’s postal service and the personal contents of your e-mail messages are as private to you as the letters we used to send through the U.S. Postal Service.

But even though the answer seems obvious, it’s not what most people would guess. At least today, some of the contents of your e-mail (most notably the e-mails you store on a server, like on Gmail) are not as well-protected.

To read your post mail, the government generally needs a warrant, issued by a neutral magistrate, and based on probable cause that it will provide evidence of a crime. To read the content of e-mail messages stored on a server for an extended period, it doesn’t need a warrant at all.

The reason for this difference in treatment is more historical than malevolent. The law that protects e-mail—the Electronic Communications and Privacy Act (ECPA)—was written in 1986, when Gmail didn’t exist, when cloud servers were a dream of the future, and when nobody could imagine storing e-mail for any length of time because digital storage costs were so high.

All that’s changed now, but the law hasn’t kept up. That’s why Congress is to be commended for finally beginning an effort to modernize the law. On Tuesday, in the Senate, Senators Patrick Leahy (D–VT) and Mike Lee (R–UT) introduced a bipartisan bill to update ECPA into the 21st century. At the same time, the House Judiciary Committee held a hearing to consider its own solutions.

The time is ripe for change and the principle is clear: In the normal law enforcement context, police and FBI officers should have no more access to our stored e-mail than they do to our stored private letters. Tuesday’s actions on both sides of Capitol Hill are a welcome first step in the right direction.

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